ORDER P.K. Jain, J.
1. Heard Sri J. Habib, learned counsel for the petitioner and Sri Jitendra Pal, learned counsel for respondent No. 3.
2. By the present writ the petitioner has challenged orders dated 20-192 (Annexure 1 to the writ petition), 22-1-92 (Annexure 4 to the writ petition), 6-10-95 (Annexure 7 to the writ petition) and 5-12-96 (Annexure to the writ petition).
3. Respondent No. 3, Smt. Leelawati, claiming to be the wife of the petitioner filed a petition under Section 125 Cr. P.C. claiming maintenance allowance for herself and her minor daughter. The petitioner was served with the notice in the said case and filed written statement wherein he admitted marriage and birth of a child out of their wed-lock but he denied other allegations. He alleged that on 5-5-86 when the petitioner was working in his field, one Shyam Lal abducted Smt. Leelawati, regarding which he lodged a report on 7-5-86. The petitioner had made several attempts to bring the wife back to her matrimonial home but her parents did not permit her to come and live with the petitioner. A Panchayat was held in which the wife refused to live with the petitioner. Thereafter a notice dated 17-10-86 was served but to no affect. It was also alleged that the petitioner did not own any agricultural land and he was doing labour work and was earning Rs. 150/- per month. It appears that the wife examined P.W.I Ram Das and herself as P.W.2. The petitioner did not appear and did not produce any evidence. Hence, the case proceeded ex parte and was decided ex parte by judgment and order dated 22-1-92 (Annexure 4 to the petition) whereby maintenance allowance at the rate of Rs. 250/- per month to the wife and Rs. 100/- to the minor daughter was awarded.
4. It further transpires from the record that the case was listed for hearing on 20-1-92 on which date the petitioner absented. The trial Court passed order (Annexure 1 to the writ petition) directing it to proceed ex parte. Thereafter the petitioner moved an application to recall the ex parte order. This application was moved on 20-1-92 itself but it was rejected by order dated 20-1 -92 on the ground that several opportunities were given to the petitioner to adduce evidence and he had failed to adduce any evidence. He thus wanted to linger on the case. Thereafter the petitioner filed Crl. Revision No. 501 of 1992 which was dismissed by this Court by order dated 2-4-92 with the observation that the remedy for the applicant lies before the Magistrate concerned under Section 126(2) proviso. The Court had also observed that in case such an application is moved, the said application shall be disposed of in accordance with law after affording the applicant an opportunity to satisfy the Court whether he had sufficient reason for not appearing before the Court on 20-1-1992. The petitioner did not avail the opportunity of moving an application under Section 126(2) Cr.P.C. till 24-12-93 and it was only on 24-12-93 that an application to recall orders dated 20-1-92 and 22-1-92 was moved. This application was rejected by the trial Court by order dated 6-10-95 (Annexure 7 to the writ petition). Thereafter petitioner filed revision against the order dated 6-10-95 which was dismissed by the revisional Court by judgment and order dated 5-12-96 (Annexure 8 to the writ petition).
5. As already pointed out above, by the present writ petition, the petitioner challenges the orders dated 20-1-92, 22-1-92, 6-10-95 and 5-12-96. On the ground that proper opportunity to adduce evidence was not afforded to the petitioner.
6. Learned counsel for the respondent contends that the case was pending since 1986 as is evident from the order of the learned Munsif Magistrate (Annexure 4 to the writ petition) and the petitioner had been delaying disposal of the maintenance application on one or the other ground although he was given sufficient opportunity by the Court.
7. At the out set it may be pointed out that by order dated 22-1 -92 maintenance allowance was granted to the minor child also. She has not been impleaded as party to the present writ petition. Therefore, no adverse order can be passed against the child who has been awarded maintenance allowance at the rate of Rs. 100/- per month. It would also transpire from the perusal of Annexure 8 that the child was not made party to the criminal revision No. 38 of 1995 (Annexure 8 to the writ petition) which was decided on 5-12-96. It is provided under Section 401(2) Cr. P.C. that "no order under this section shall be made to the prejudice of the accused or other person unless he has had an opportunity of being heard either personally or by pleader in his own defence." Since neither in the revision nor in this petition the minor child has been impleaded as party, no adverse order can be passed against her.
8. It may further be pointed out that against the ex parte judgment and order two simultaneous remedies were open to the petitioner, one was by way of moving an application under the proviso to Section 126(2) Cr. P.C. and the other was by way of filing a revision against the said order. The petitioner availed only one remedy, viz., filed restoration application under Section 126(2) Cr. P.C. He did not avail the other remedy of filing revision against the said order. Therefore, after the lapse of more than five years, in exercise of writ jurisdiction, no interference is called for when the petitioner did not avail the alternate remedy by way of filing revision against the order dated 22-1-92.
9. There is no dispute that maintenance petition was pending since 30-10-86 which could not be disposed of till 22-1-92 as petitioner did not allow the Court to decide the case on one ground or the other. The Court had, therefore, to proceed ex parte. Even though this Court in Criminal Revision No. 501 of 1992 by order dated 2-4-92 afforded opportunity to move before the trial Court for setting aside the ex parte judgment and order, yet the petitioner did not avail the said opporunity for a period of about one year and eight months for which no reasonable cause is shown. It appears that while disposing of the earlier revision, the Court had stayed recovery proceedings till the petitioner moved application for setting aside the ex parte order, the petitioner malafidely refrained from moving such application. There have been laches on the part of the petitioner for which there is no explanation. Both the Courts below have held that the petitioner malafidely attempted to delay the disposal of the case and thereby deprived the wife and the minor daughter from receiving maintenance allowance. There is no illegality or perversity in these findings of fact which do not call for any interference in exercise of writ jurisdiction. The trial Court as well as the revisional Court rightly rejected the application under Section 126(2) Cr. P.C.
10. The learned counsel has pointed out that the petitioner had specifically alleged in the written statement that the wife was abducted by one Shyam Lal and thereafter she intentionally refrained to join the petitioner and perform her matrimonial obligations. Therefore, she was not entitled to any maintenance allowance. Mere allegations in the written statement without any further evidence do not amount to proof of such allegations. In case the petitioner feels that the wife is not returning to her matrimonial home without sufficient cause or that she was leading adulterous life, he has alternative remedy under Section 127 Cr. P.C. and he may move an application for alteration or cancellation of the maintenance order so far as the wife is concerned.
11. Last contention of the learned counsel for the petitioner is that the maintenance allowance has been awarded from the date of application and no reasons have been assigned by the trial Court. It is contended that in view of the provisions contained in Section 125(2) Cr. P.C. the maintenance allowance could not be awarded from the date of application. It is true that the trial Court has not given reasons why maintenance allowance is being awarded from the date of application but there is sufficient material on record to show that it was the petitioner who was responsible for delay in disposal of the maintenance petition. This was sufficient ground for awarding maintenance allowance from the date of application.
12. There is no merit in the writ petition. The same deserves to be dismissed.
13. Petition is hereby dismissed. No order as to costs.